Surviving same-sex spouses of federal employees may be entitled to survivor benefits they were originally denied under a notice issued by the Office of Personnel Management Nov. 16.

In order to qualify for survivor benefits, a couple of any sexuality must have been married for at least nine months prior to the federal employee’s death.

But as the notice states, prior restrictions like the Defense of Marriage Act and individual state prohibitions against same sex marriage prevented some couples from getting legally married until after they were overturned by the Supreme Court.

In some cases, long-established partners of federal employees may therefore have been denied survivor benefits when their spouse died, because they had been unable to get married until after those restrictions were overturned.

Reconsideration of survivor benefit qualification rests on the timing around two Supreme Court cases: United States v. Windsor and United States v. Obergefell.

In the 2013 case United States v. Windsor, the Supreme Court struck down section 3 of DOMA, which required the federal government to treat same-sex couples differently from heterosexual couples. As a result, same sex marriages could be recognized under federal employment, and surviving spouses in those cases could be offered survivor benefits if their partner died.

In the 2015 United States v. Obergefell decision, the Supreme Court struck down all state laws that prohibited same-sex marriage.

At those times, OPM granted federal employees and their survivors the opportunity to reapply for benefit eligibility, but did not address the window where a federal employee may marry their partner and then die before the nine month requirement was met.

In order for survivors to newly qualify for the benefit, they must prove that they either married the now deceased employee prior to the Windsor decision but did not have that marriage recognized, that they married the now deceased employee within one year of the Windsor decision; or that they lived in a state where same-sex marriage was prohibited and got married within one year of the Obergefell decision.

“If you are an affected same-sex spouse of a deceased federal employee or annuitant, you may submit an application for death benefits to OPM, Standard Form (SF) 2800 for CSRS and SF 3104 for FERS (or you may resubmit an application if OPM previously denied you survivor annuity benefits or a [basic employee death benefit] because you could not establish you had met the 9-month marriage requirement),” the notice states.

Jessie Bur covers the federal workforce and the changes most likely to impact government employees.

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